Private Data: (Unconstitutional?) Cash Cow for Cell Phone Companies

The old rotary-dial landline phones were so easy to tap, weren’t they? We instantly recognize the scenario when we see it on the big screen: “Hello?” – buzz, click, crackle – “Hello? Who’s there?!” – tap, tap, pop. Those dusty old days seem to be over. But only a few decades into the age of mobile communication, cell phone privacy already seems a thing of the past.

As proprietors of their customers’ private information—phone numbers, messages, GPS tracking—mobile service providers have both a responsibility to protect privacy and a tantalizing source of untapped revenue. Customer information is a goldmine for law enforcement agencies, and they are willing to pay for access. Recent news suggests cell phone companies are beginning to cash in.

In 2011 alone, state and federal law enforcement agencies made 1.3 million demands for user cell phone data—a fifteen percent increase over the previous year. The information was compiled by Rep. Ed Markey of Massachusetts following an independent investigation.

Privacy advocacy groups have concerns about the lawfulness of demanding such information without a warrant. In a letter to several House committee chairmen, Rep. Markey and three of his colleagues requested a hearing to investigate whether consumers’ privacy is being adequately protected.

The financial incentive to hand over such information has been a cause for alarm. In their letter, the congressmen highlighted the lucrative benefits to service providers: “Verizon charges to law enforcement ranged from $50 to retrieve up to five days of stored text message content to $1825 for multiple wiretap switches” while “AT&T received more than $8.2 million in 2011 for ‘collecting and submitting customer phone usage information to law enforcement.’”

With today’s smart phone technology, it should surprise no one that mobile communication devices accumulate intimate details of our identities and private lives. Knowledge of a person’s whereabouts alone, via GPS records, can be particularly intrusive.

As the D.C. Circuit noted, knowledge of a person’s travels will divulge “whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.” United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010).

The Supreme Court has not ruled directly on the constitutionality of selling consumer cell phone information. Even so, consumer privacy groups hope the Supreme Court gave a hint as to how it might decide that question. In an opinion handed down this year, the Court held that law enforcement officials must obtain a warrant to place GPS tracking devices on vehicles. United States v. Jones, 132 S. Ct. 945 (2012).

Congress has taken up the issue. Under the proposed Mobile Device Privacy Act, service providers would be required to inform consumers of tracking software installed on their phones. But, as everyone knows, disclosing invasions of privacy is not the same thing as protecting privacy.

The demand for cell phone services is ever-increasing in our wireless world. Only time will tell how effective any efforts will truly be at protecting information privacy.